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959

HARVEY V BEVERIDGE: COMMON

INTENTION CONSTRUCTIVE TRUSTS IN

NEW ZEALAND? Mark Bennett*

This article discusses the reasoning of the High Court and Court of Appeal in Harvey v Beveridge

in respect of the existence of "common intention constructive trusts" in New Zealand law. It

analyses the development of constructive trusts doctrine in New Zealand, and argues that a different

approach was taken to the application of this doctrine in relationship property disputes compared

with the equivalent English doctrine. This difference was not recognised in Harvey v Beveridge, and

it is argued that an adequate understanding of this difference requires us to grapple with the

underlying foundations of the New Zealand law, which were left open during the Court of Appeal's

development of the doctrine.

I INTRODUCTION

In what circumstances, and for what reasons, can you make a legally recognised claim of rights

to property that you are not the legal owner of? This is an important question in many people's lives,

and one that a legal system should provide clear answers to. The law relating to constructive trusts

provides one answer to this question, but while the main categories are relatively clear, the doctrinal

basis for such trusts in the context of relationship property is uncertain.1 This article considers the

answer to this question that has been given in recent New Zealand judicial analysis of the law

relating to constructive trusts in the recent Harvey v Beveridge decisions of the High Court and

Court of Appeal,2 in which a claim to equitable ownership of a residential property was considered

* Victoria University of Wellington School of Law. I wish to thank Tony Angelo, Graeme Austin and an

anonymous reviewer for their comments on earlier drafts of this article. I thank Bill Atkin for the same, as

well as for his guidance and friendship over 20 years, in the classroom, as a colleague and on the cricket

pitch.

1 See for example Halsbury's Law of Canada (online ed, 2011) "Trusts" at [HTR-44]; Donovan WM Waters,

Mark Gillen and Lionel D Smith (eds) Waters' Law of Trusts in Canada (4th ed, Carswell, Toronto, 2012) at

[11.I]; and Robert Chambers "Constructive Trusts in Canada" (1999) 37 Alta L Rev 173.

2 Harvey v Beveridge [2013] NZHC 1718, [2013] NZAR 1364 [Harvey (HC)]; and Harvey v Beveridge

[2014] NZCA 72, (2014) 29 FRNZ 539 [Harvey (CA)].

960 (2015) 46 VUWLR

by reference to the doctrine of "common intention constructive trust". This article analyses the

courts' reasoning in light of the historical development of the doctrine and suggests how it could be

further clarified.

II PROFESSOR ATKIN'S CONTRIBUTION TO FAMILY PROPERTY SCHOLARSHIP

Another impetus for this article is the desire to pay tribute to Professor Bill Atkin on the

occasion of his 40th year at Victoria University of Wellington's Faculty of Law. The article's subject

matter is fitting given that Professor Atkin spent much of that time enlightening law students and the

legal community on the developing law of family property and family law in general – ultimately

becoming one of the leading New Zealand authorities on family law. He began his career here just

before the passage of the landmark Matrimonial Property Act 1976, which entrenched the concept

of equal sharing of family property,3 and over the years he has seen social and legislative mores

change to the extent that the family property regime was in most parts extended to "de facto"

relationships in 2001.4 Indeed, Professor Atkin's scholarship clearly influenced these changes,5 for

example as a member of the Working Group on Matrimonial Property and Family Protection.6

These developments in the statutory family property regime make the law discussed in this article –

equity's contribution to regulating property relations within close personal relationships – less

important in determining entitlements to property after the relationship had ended. Yet this law is

still applicable in a number of situations, and the decisions in Harvey demonstrate that both its

doctrinal nature and its relationship with English authority is still not entirely clear.

This specific question was analysed by Professor Atkin in the early 1990s, in a book on the law

relating to Living Together Without Marriage.7 At that time, one of the key issues in that area –

ownership of property – was not regulated by the statutory regime that applies today, but by the

general law. Indeed, Professor Atkin noted that "the tail has wagged the dog" in the sense that cases

involving de facto partners had significantly impacted the development of the general law in areas

3 See Bill Atkin and others "Fifty Years of New Zealand Family Law" (2013) 25 NZULR 645 at 662. See

also Anthony H Angelo and Bill Atkin "A Conceptual and Structural Overview of the Matrimonial Property

Act 1976" (1977) 7 NZULR 237.

4 Property (Relationships) Amendment Act 2001. See the initial analysis of this legislation in the 2001 edition

of Bill Atkin and Wendy Parker Relationship Property in New Zealand (Butterworths, Wellington, 2001).

5 Bill Atkin "Family Property Law Reform" in Bill Atkin, Graeme Austin and Virginia Grainer (eds) Family

Property Law & Policy (New Zealand Institute of Advanced Legal Studies and Victoria University of

Wellington Law Review, Wellington, 1995) 77.

6 Report of the Working Group on Matrimonial Property and Family Protection (Department of Justice,

Wellington, 1988); and Bill Atkin "More law reform: the report of the Working Group on Matrimonial

Property and Family Protection October 1988)" (1989) 2 FLB 18.

7 Bill Atkin Living Together Without Marriage: The Law in New Zealand (Butterworths, Wellington, 1991).

HARVEY V BEVERIDGE: COMMON INTENTION CONSTRUCTIVE TRUSTS IN NEW ZEALAND? 961

such as trusts and estoppel, as the courts had attempted to "stretch and mould concepts to do justice

between the parties".8 The analysis sat between the old English jurisprudence of common intention

and the new test of reasonable expectations propounded by the Court of Appeal under (then)

President Cooke;9 the traditional analysis was being doubted by academic commentators, and

although the New Zealand judges were "by no means unanimous" in their "precise method for

resolving de facto cases", Professor Atkin observed that:10

… there may be little advantage in keeping the different categories of trust … In de facto cases, the

traditional cases, it is today argued, focus attention on the wrong things, and, instead, there should be a

new kind of analysis which is more suited to modern-day needs.

This was a prescient observation, coming before the canonical restatement of the reasonable

expectations approach a few years later in Lankow v Rose,11 the decision that confirmed the move

away from the English common intentions approach. As Professor Atkin later observed, the New

Zealand Court of Appeal "carved out its own formula", allowing a more liberal approach to

recognising equitable rights.12 His view then was that, on first glance, the reasonable expectations

test appears "to offer a just and tolerably clear way of tackling property disputes of de facto

partners".13 However he cautioned that the law had become far from certain, and the success of a

claim and the quantification of the award has not been easy to predict.14 Nevertheless in 2004 we

heard no phantoms of common intention15 rattling their chains in Professor Atkin's discussion, and

saw no reference to English authority; given the shift in approach of New Zealand courts, none was

necessary.

Yet a decade later, in the recent decisions in Harvey, we seem to see a return to the language of

the "common intention constructive trust" (CICT), and reference to the old and new English cases;

the impression that one gains on first glance is that the English approach to these issues is alive and

well and an alternative to the New Zealand "reasonable expectations constructive trust" (RECT). In

Harvey, a man claimed rights in his friend's residential property, which he said had been given to

8 At 74.

9 See the discussion below in Part IV:B: The Express CICT in the Formative Court of Appeal Authorities?

10 Atkin, above n 7, at 75–76.

11 Lankow v Rose [1995] 1 NZLR 277 (CA).

12 Bill Atkin "The Challenge of Unmarried Cohabitation – The New Zealand Response" (2003) 37 Fam LQ

303 at 306.

13 At 308.

14 At 309–310.

15 Kevin Gray "The Law of Trusts and the Quasi-Matrimonial Home" [1983] CLJ 30 at 33, cited in Hayward v

Giordani [1983] NZLR 140 (CA) at 144 per Cooke J and Stratulatos v Stratulatos [1988] 2 NZLR 424

(HC) at 436 per McGechan J.

962 (2015) 46 VUWLR

him; however, there was no legal transfer or steps taken to complete such a transfer, no formal

declaration of trust and no contribution to the property. The High Court nevertheless identified a

possible claim – enough to prevent summary judgment against the defendant – under the CICT

approach. On appeal, the Court of Appeal dismissed the CICT approach where there is no

contribution or detriment, but it did not analyse in detail how it sits in relation to the RECT test.

It is therefore likely that the revival of the language and concepts of common intention will

continue until the law is further clarified: soon after it was decided, the High Court decision in

Harvey was cited favourably in Ridge v Parore, where it was said that CICTs "form a well-

established part of the law of trusts in England and Australia".16 It is argued here, with respect, that

such a view is misleading in that in recent years, New Zealand courts have been applying neither the

"extended" idea of the CICT as it exists in England, nor the unconscionability approach used in

Australia.17 The High Court's decision suggests that the complex, controversial and still-developing

English CICT approach to the recognition of informal property rights in land, through the

mechanism of the constructive trust, is applicable here; the Court of Appeal doubted but did not

reject this.

However, the continuing existence of the CICT approach in New Zealand would be out of step

with what happened from the 1970s through the 1990s when this jurisdiction's constructive trusts

law took a different path than those followed in England and other comparable jurisdictions.18 This

was a deliberate choice to found constructive trust law in New Zealand in the area of property to

which a relationship partner has contributed according to the reasonable expectations of a beneficial

interest.19 No longer would the courts look to infer or impute intentions where there was no clearly

expressed common intention as to beneficial ownership; instead where the claimant had a

reasonable expectation of a beneficial interest due to their contribution to the defendant's property,

the courts would recognise that it would be unconscionable for the defendant not to recognise this

16 Ridge v Parore [2014] NZHC 318 at [19].

17 The Australian doctrines in this area are based on the idea of the unconscionability of retaining benefits

received by the defendant in the context of a joint endeavour that subsequently fails: Muchinski v Dodds

(1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137; Halsbury's Laws of Australia

(online looseleaf ed, 2015) "Trusts" at [430-620]; and John Mee The Property Rights of Cohabitees (Hart,

Oxford, 1999) at ch 8, especially at 252–264. Compare with Harvey (HC), above n 2, at [25].

18 For discussions of the developments over these years, see Bill Atkin Living Together Without Marriage:

The Law in New Zealand (Butterworths, Wellington, 1991) at ch 5; and Mark Henaghan and Nicola Peart

"Relationship Property Appeals in the New Zealand Court of Appeal 1958-2008: The Elusiveness of

Equality" in Rick Bigwood (ed) The Permanent New Zealand Court of Appeal: Essays on the First 50 years

(Hart, Oxford, 2009) 99 at 129–145.

19 See for example Lankow v Rose, above n 11, at 281–282 per Hardie-Boys J, comparing the alternative

approaches and stating that one "legal rubric" providing "clear criteria for the imposition of constructive

trusts in the area of de facto relationships" should be identified.


interest.20 There need be no shared agreement or intention for such an interest to exist, nor any

representation on the part of the defendant: so long as the claimant had contributed and reasonably

expected an interest, this would be enough.

The English courts have now arguably reached an almost functionally equivalent test with the

decisions in Stack v Dowden21 and Jones v Kernott.22 The frank statement in the former case, that

courts could impute a common intention as to the shares of the beneficial interest in property in light

of the "whole course of dealing between the parties",23 has replaced the quest to infer such

intentions in earlier decisions.24 Nevertheless, the point remains: the different approaches for the

recognition of equitable interests in property as between relationship partners are aiming at similar

responses to similar circumstances – and they are stated as different doctrines due to judges'

preferences for that particular statement in terms of the fairness of the substantive result, ease of

application or avoiding fictions.25 The tests were not meant to sit alongside each other.26 If this

were not the case, New Zealand law in this area would still be subject to James Mee's embarrassing

analogy: "It is as if, wanting to look especially well at a party, a guest arrived wearing all her frocks

at once."27 The better approach is shown in the Canadian Supreme Court's clear restatement of its

20 Hayward v Giordani, above n 15, at 148 per Cooke J; Pasi v Kamana [1986] 1 NZLR 603 (CA) at 605;

Gillies v Keogh [1989] 2 NZLR 327 (CA) at 330–331 per Cooke P and at 344 and 346–347 per Richardson

J; Phillips v Phillips [1993] 3 NZLR 159 (CA) at 168 per Cooke P; Lankow v Rose, above n 11, at 281–282

per Hardie Boys J, at 288 per Gault J and at 293 per Tipping J.

21 Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 at [25].

22 Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776.

23 Stack v Dowden, above n 21, at [60].

24 See John Mee "Jones v Kernott: Inferring and Imputing in Essex" [2012] Conv 167; Terence Etherton

"Constructive Trusts: A New Model for Equity and Unjust Enrichment" (2008) 67 CLJ 265; Nick Piska

"Intention, Fairness and the Presumption of Resulting Trust after Stack v Dowden" (2008) 71 MLR 120;

Simon Gardner "Family Property Today" (2008) 124 LQR 422 at 427–428; Graham Virgo The Principles of

Equity and Trusts (Oxford University Press, Oxford, 2012) at 326–329; and Charlie Webb and Tim Akkouh

Trusts Law (4th ed, Palgrave Macmillan, London, 2015) at 220–224.

25 See for example Lankow v Rose, above n 11, at 289 per Gault J.

26 Compare Gault J's statement in Lankow v Rose, above n 11, at 289: "… it is not necessary to choose

between the various approaches. To adopt one as providing a workable means of dealing with the increasing

number of cases in this area is not to reject the others. In any case it will be open to a claimant to formulate

a case on any of the bases so far employed. They will include claims based on contract, express, implied or

resulting trusts, common intention, unconscionability, estoppel and unjust enrichment." See also David

Hayton "Constructive Trusts: Is the Remedying of Unjust Enrichment a Satisfactory Approach?" in TG

Youdan (ed) Equity, Fiduciaries and Trusts (Carswell, Toronto, 1989) 205 at 239.

27 Mee, above n 17, at 292.

964 (2015) 46 VUWLR

own break with the English common intention approach,28 and New Zealand courts should do the

same.

It should be remembered that, for the most part, the law relating to equity's contribution to

resolving property disputes after the breakdown of de facto relationships has been replaced with the

general statutory relationship property regime.29 The Property (Relationships) Act 1976 regime for

division of relationship property applies to de facto relationships that end after or on the day that the

amendments to the Act came into force on 1 February 2002.30 The law of constructive trusts will

apply only in a much smaller range of circumstances – but of course still crucially important to the

parties involved.31 Achieving a coherent and doctrinally sound law of constructive trusts is another

reason to look further into the decisions and their reasoning.

III HARVEY V BEVERIDGE

The decisions in Harvey related to alleged facts concerning the beneficial ownership of a

residential housing unit that was legally owned by the late Dr Mark Byrd and occupied by his friend

Ian Beveridge, who claimed an equitable interest in it. Dr Byrd had provided Mr Beveridge with the

use of a residential unit free of charge.32 When Dr Byrd died, Mr Beveridge claimed that the

residential unit was his property – that Dr Byrd had given it to him and told him repeatedly that "it is

yours".33 This was not reflected in Dr Byrd's will, and the executor – Reverend Harvey – gave

notice to Mr Beveridge to vacate the property, as she was required to do.34 However Mr Beveridge

refused to do so and lodged a caveat on the title, claiming that the property was his.35

There were crucial legal problems with this latter claim. Dr Byrd had not legally gifted the

property to Mr Beveridge, as this would have required registration under the Land Transfer

system.36 The property was clearly legally owned by the executor, as administrator of the will.37

28 Kerr v Baranow 2011 SCC 10, [2011] 1 SCR 269 at [21]–[29].

29 Jessica Palmer "Constructive Trusts" in Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed,

Thomson Reuters, Wellington, 2009) 335 at [13.2.4].

30 Property (Relationships) Act 1976, s 4C(2).

31 For discussion of the circumstances where the general law including constructive trusts is still applicable

despite the partial codification of the law in the Property (Relationships) Act 1976, see Nicola Peart "Equity

in Family Law" in Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters,

Wellington, 2009) 1161 at 1168–1179 and 1197–1198.

32 Harvey (HC), above n 2, at [1].

33 At [61]–[64].

34 Harvey (CA), above n 2, at [43].

35 At [3].

36 Land Transfer Act 1952, s 41. See Jody L Foster "Title by Registration" in GW Hinde and others Principles

of Real Property Law (2nd ed, LexisNexis, Wellington, 2014) 263 at 268–283.


What then about a claim in equity? One obvious equitable ownership claim would be an express

trust, but there was no written and signed evidence of the declaration of trust – without which an

express trust is invalid38 under s 25(2) of the Property Law Act 2007. Mr Beveridge needed to

circumvent this formality, and so argued for the existence of a constructive trust, which is

specifically excluded from the formality requirement.39 In the High Court, the executor's application

for summary judgment was rejected because the law was not settled, meaning that a constructive

trust claim might be made out at trial.40 However, in the Court of Appeal this decision was

overturned, because no constructive trust claim could have possibly been made out. The divergence

of these two courts will be explained below.

A The High Court Decision

In the High Court decision (Harvey (HC)), the summary judgment application was made by the

executor Reverend Harvey for possession of the unit and mesne profits relating to Mr Beveridge's

having remained in the unit after being asked to vacate it. There was also an application to remove

the caveat that Mr Beveridge had lodged against the title.41

Because he had not made any significant contribution to the property, Mr Beveridge's claim

could not rely on Lankow RECT principles or on proprietary estoppel principles.42 Instead, a claim

based on expressed intentions – a CICT – was identified by counsel, primarily with reference to the

decision of Fisher J in Cossey v Bach.43 This, Osborne AJ argues, is a different kind of trust than the

"constructive trust based on expectations" identified in Gillies v Keogh and Lankow.44 The

Associate Judge observes that New Zealand trusts law texts "universally cover the type of trust in

Gillies v Keogh based on reasonable expectations".45 The implication is that they are deficient in

37 Administration Act 1969, s 24.

38 In Laws of New Zealand Trusts at [43], the commentary seems to be taken from Halsbury's Laws of

England, because it states that writing is only required evidence of the trust. But the English formality

provision s 52(1)(b) Law of Property Act 1952 (UK), states only that declarations of trust must be

"manifested and proved by some writing signed by some person who is able to declare such trust or by his

will", whereas s 25(2) requires that a trust of land "must be created in writing and signed by the settlor".

Thus the New Zealand formality provision mirrors s 52(1)(c) of the English Law of Property Act 1925

(UK), which requires that disposition of an existing equitable interest "must be in writing".

39 Property Law Act 2007, s 25(4)(a).


41 At [2].

42 At [6] and more fully at [38].

43 Cossey v Bach [1992] 3 NZLR 612 (HC) at 628.

44 Harvey (HC), above n 2, at [9]. Gillies v Keogh, above n 20; and Lankow v Rose, above n 11.

45 At [11].

966 (2015) 46 VUWLR

missing another key area of relevant law, the CICT.46 Indeed, later Osborne AJ argues that New

Zealand texts and commentaries do not spend much time discussing the CICT, in contrast with those

in Australia and the United Kingdom – the latter stimulated by the continuing importance of

constructive and resulting trusts in matrimonial property disputes and the recent decisions of Stack

and Jones.47 The Associate Judge states that no "developed treatment" on the CICT in authority or

commentary was cited to him.48

The requirements identified are as follows:

First, there must be an unequivocal common intention (that the claimant have a beneficial

interest in the property).49 "Common" means that the intention must be shared by both

parties.50 This point is justified with a discussion of the recent English cases.51 The

Associate Judge notes the puzzle that where there is no formality requirement a valid trust

will arise simply due to the unilateral intention of the owner of the property.52 However,

that situation, discussed in Cossey and SM v MH,53 is "by its nature fundamentally different

to the common intention constructive trust".54 Yet as discussed further below, it is not clear

why this is so.

Osborne AJ then states that the common intention be an actual subjective intention.55 This

accords with his previous requirement of an express intention derived from unequivocal

words or conduct. However, by drawing on the English case law, the concept of inferring

common intention from the parties' conduct is introduced.56

The next requirement, discussed exclusively with reference to English authority, is that the

common intention must be expressed at the time of acquisition of the property, or if there is

compelling evidence of the intention, or as an exception, the beneficial interest might be

46 At [9].

47 At [14]. Stack v Dowden, above n 21; and Jones v Kernott, above n 22.

48 At [23].

49 At [26].

50 At [27].

51 At [28].

52 At [30].

53 SM v MH HC New Plymouth CIV-2007-443-656, 28 October 2008.


55 At [38].

56 At [39].


intended at some point after acquisition.57 Here is a point where the influence of the

extended English CICT doctrine seems to be causing problems; characterizing intentions

occurring after the acquisition as "exceptional" was not part of the developing New Zealand

RECT jurisprudence, and is no longer the English law relating to CICTs.58

Osborne AJ notes that the English CICT has applied predominantly to relationship

property, particularly the family home.59 However – crucially for Beveridge's case – the

Associate Judge argues that the English CICT can apply outside personal (romantic)

relationships,60 and even to commercial relationships. The latter is a controversial point in

England.61

The most controversial requirement of the Associate Judge's CICT test is whether one or

more of contribution, detriment, reliance or alteration of position on the part of the claimant

is required.62 Osborne AJ observes that while contribution is required by some

formulations, this is not found in New Zealand common intention decisions, of which the

comprehensive analysis set out by Fisher J in Cossey is singled out as important.63

It is this last point – the discussion of detriment – that is most crucial, because it highlights the

question of the doctrinal basis for CICTs. This question arises because effectively what has occurred

in a situation where all of the other requirements obtain is that a trust has been declared, but it is

invalid due to formality rules for dispositions of land. Where the owner of personal property

expresses an intention that they are bound to hold it for another's benefit as well, this is an express

trust regardless of contribution or detriment.64 But in the case of trusts relating to land, the formality

rule under s 25 of the Property Law Act 2007 makes invalid declarations of trust that are not written

and signed.65 The formality does not apply to resulting or constructive trusts,66 which by their very

57 At [31]–[33].

58 See for example the analysis of changes in intention over time in Jones v Kernott, above n 22, at [48] and

[51], and the "whole course of dealing" approach in Stack v Dowden, above n 21, at [60].

59 Harvey (HC), above n 2, at [34]–[35].

60 As shown by Osborne AJ's citation of Mollo v Mollo [2000] WTLR 227 (Ch).

61 For comment see Crossco No 4 Unlimited v Jolan Ltd [2011] EWCA Civ 1619, [2012] 2 All ER 754 at

[85]–[88] per Etherton LJ. See also Terrence Etherton "Constructive Trusts and Proprietary Estoppel: the

Search for Clarity and Principle" [2009] Conv 104 at 105–115; Nicholas Hopkins "The Pallant v Morgan

"Equity" – Again: Crossco No 4 Unlimited v Jolan Ltd" [2012] Conv 327; and Man Yip "The Pallant v

Morgan Equity Reconsidered" (2013) 33 LS 549.


63 At [44]. Cossey v Bach, above n 43.

64 Paul v Constance [1977] 1 WLR 527 (CA); and Rowe v Prance [1999] 2 FLR 787 (Ch).


968 (2015) 46 VUWLR

nature arise less intentionally and more informally. Thus the importance of interpreting what looks

like an (informal) express trust as a constructive trust.

In Harvey (HC) the Associate Judge agrees with what he takes to be the orthodoxy that such an

express common intention trust is a constructive trust.67 The well-known problem with this

orthodoxy is that if what we are dealing with is in substance an informal declaration of trust of land,

then to bring it into the category of constructive trusts there must be something that makes the

settlor's not giving effect to the trust unconscionable. Equity does not aid a volunteer;68 exceptions

include where there is a valid and constituted express trust,69 and where there is some element of

unconscionability in the defendant's conduct with respect to the claimant that justifies equity's

intervention.70 Thus a contribution or other detriment seems to logically be required, as Osborne AJ

notes:71

I am inclined to the conclusion that such authorities appropriately recognise that, in the absence of such,

the unconscionability or fraud on the statute which justifies the Court's upholding of constructive trusts

will be absent. If something in the nature of detriment is not required, it is arguable that the Court would

be unjustifiably enforcing an express trust which was not documented in writing.

However, the Associate Judge found that the law in New Zealand was not settled, so that in the

context of a summary judgment he could not say that detriment was a requirement so as to mean

that Beveridge's claim was untenable.72

B The Court of Appeal

The High Court's decision was overturned in the Court of Appeal decision (Harvey (CA)). After

noting Osborne AJ had "comprehensively analysed" the concept of the CICT,73 the Court of Appeal

rejected the applicability of the doctrine to the situation: "None of the authorities relied on …

supports the proposition that there is any basis [in these circumstances] for a 'common intention'

66 Property Law Act 2007, s 25(2).


68 Milroy v Lord (1862) 45 ER 1185; Re Rose [1952] 1 Ch 499 (CA); and Pennington v Waine [2002] EWCA

Civ 227, [2002] 1 WLR 2075 at [52]–[54].

69 Commissioner of Stamp Duties (Queensland) v Joliffe (1920) 28 CLR 178 at 187.

70 Pennington v Waine, above n 68, at [55]–[61].


72 At [51].



constructive trust".74 The Court found issue with both the Associate Judge's application of the law to

the facts and his statement of the requirements of the CICT.

In coming to its decision, the Court provided a useful wide-ranging discussion of the general

area of informal equitable property rights, setting out and then dismissing a number of possible

arguments for Mr Beveridge having an interest in the property.75 This was necessitated by the

Court's characterisation of Dr Byrd's (purported) intention as being to gift his property to Mr

Beveridge, rather than to hold it on trust for him.76 This will bring to most lawyers' minds the

forceful reminder in Milroy v Lord that transactions must be given the legal meaning that they

naturally bear;77 as the present Court observes, intention to make a gift cannot be interpreted as an

intention to declare a trust.78 In any case an express trust would be void for not complying with the

formality provisions of the Property Law Act 2007.79 Furthermore, as no steps had been taken to

effect that transfer, there could be no argument that equity should "complete" the gift.80 The Court

reiterated the corollary point that an incomplete gift can be "revoked" at any time.81

The Court's discussion of the claimant's CICT argument is relatively brisk in comparison to

Osborne AJ's. The first of two key paragraphs suggests a distinction between the New Zealand

authorities in the area and the present claim:82

None of the authorities involved a claim based on the alleged unconscionability of an executrix in

implementing the instructions of a will-maker who it is accepted was entitled to resile in his will from

unimplemented intentions expressed during his lifetime. The authorities were all concerned with the

requirements for resulting or constructive trusts in the context of relationships that are now covered by

the Property (Relationships) Act 1976. It is therefore unnecessary for us to decide in the present case

74 At [45].

75 Note that these arguments were apparently not made by counsel nor accepted by Osborne AJ. See Harvey

(HC), above n 2, at [3]: "There is a single ground of opposition, namely that Mr Beveridge beneficially

owned the unit by reason of a common intention constructive trust."


77 Milroy v Lord, above n 68. See also T Choithram International SA v Pagarani (British Virgin Islands)

[2001] 1 WLR 1 (PC).


79 Property Law Act 2007 s 25(2): "A trust must be created in writing and signed by the settlor if— (a) it

relates to land; and (b) it is to take effect in the lifetime of the settlor."

80 Harvey (CA), above n 2, at [31]. See Scoones v Galvin and the Public Trustee [1934] NZLR 1004 (CA);

and Corin v Patton (1990) 169 CLR 540. See also Struan Scott and others Adams' Land Transfer (online

looseleaf ed, LexisNexis) at [S41.6].


82 At [45].

970 (2015) 46 VUWLR

whether in New Zealand a "common intention" constructive trust should be recognised in the context of

a different relationship and in the absence of any significant contributions to the value of the property

concerned or any detriment, that is, any alteration of position in reliance on the expressed intention.

[Emphasis added.]

Strictly speaking, the Court of Appeal is saying that the earlier precedents had different facts

from the present case, and in the related footnote the Court shows that the authorities cited by the

High Court were not decided on the CICT doctrine.83 That is of course true, but why should that

matter if the principles and rules found in the authorities apply to the present situation? If, as

Osborne AJ claimed, it is arguable that authority such as Cossey allows for a constructive trust

based on express common intentions, then it is necessary to decide whether that is correct, and

whether this claim is limited to certain kinds of relationships where there is a contribution or

detriment. The latter are obviously plausible bases for distinguishing Mr Beveridge's situation from

those in the other constructive trust decisions, but they are said to be "unnecessary" distinguishing

bases. However the justification for excluding a constructive trust claim is not identified in the first

two sentences.

However, in the next key paragraph the Court of Appeal does distinguish Beveridge's claim

from those recognised in the authorities, by saying that a contribution to the property by the

claimant is required before a CICT can be recognised:84

It is well-established that constructive trusts based on the "reasonable expectations" of the parties do

require evidence of some contribution, direct or indirect, to the property at issue. We are not at all sure

that in this context the Associate Judge was right to suggest that a distinction should be drawn between

constructive trusts based on "reasonable expectations" and "common intention" constructive trusts in

order to avoid the need for evidence of contribution justifying an order for the transfer of ownership of

the Unit to Mr Beveridge. The question whether the distinction should be drawn may, however, be left

to another day given the acknowledgment that at least an element of unconscionability is required for

both. We observe that, in the absence of any evidence of contribution or any other factor, there would

appear to be no element of unconscionability sufficient to support the creation of a "common intention"

constructive trust.

Put differently, RECTs and CICTs both require contribution or some other reliance that would

cause detriment to the claimant if the right in the property was not recognised. However, it was the

contention of Mr Beveridge that under the both the New Zealand and English doctrine of CICTs, the

fact that the parties had an express common intention about the beneficial ownership of the property

– even without detriment – means that it would be unconscionable for Ms Harvey not to give effect

to that beneficial ownership. In other words, the claim is that there is a distinction between CICT

83 At [45], n 27.

84 At [46].


and RECT in terms of the detriment requirement. That position is not completely implausible, given

the analysis Osborne AJ provided with reference to considerable authority and reasoning; it requires

further discussion of authority and principle if it is to be shown to be incorrect. It is therefore useful

to look more closely at the doctrinal foundations of the law in order to consider whether a

distinction should be drawn between the CICT and the RECT.

IV THE ROLES OF THE EXPRESS CICT IN NEW ZEALAND

A The Place of the Express CICT

Despite the Court of Appeal's doubts about the express CICT existing alongside RECTs, there is

both English and New Zealand authority that could be interpreted as supporting such a trust. It

should be remembered that the idea of an express CICT was theoretically the archetypal case out of

which the extended CICT and RECT developed, as can be seen in the foundational English

decisions of Pettitt v Pettitt85 and Gissing v Gissing.86 Further, in another key decision (before the

recent reformulations in Stack), the express CICT was clearly stated in Lloyd's Bank v Rosset as

arising if:87

… independently of any inference to be drawn from the conduct of the parties in the course of sharing

the house as their home and managing their joint affairs, there has at any time prior to acquisition, or

exceptionally at some later date, been any agreement, arrangement or understanding reached between

them that the property is to be shared beneficially.

While this version of the CICT that gives effect to the express intentions of the parties clearly

exists in England, it is comparatively uncommon.88 The more prominent situation is where no such

expressed intention exists, and the courts must decide whether, on the conduct of the parties, an

inferred or imputed intention can be found; this is the "extended CICT" that goes beyond the actual

expressed intentions of the parties.89 In other words, there is no kind of constructive trust based on

expressed common intentions separate from the general English approach to CICTs; the express

CICT is merely an uncommon variation of the general doctrine. (Whether one should sort the

common intention trusts into three categories, split between express intentions, inferred intentions

and imputed intentions, is immaterial here.)

85 Pettitt v Pettitt [1970] AC 777 (HL).

86 Gissing v Gissing [1971] AC 886 (HL).

87 Lloyd's Bank v Rosset [1991] 1 AC 107 at 132.

88 See Paul Matthews "The Words Which Are Not There: A Partial History of the Constructive Trust" in

Charles Mitchell (ed) Constructive and Resulting Trusts (Hart, Oxford, 2009) 1 at 46–47; and Grant v

Edwards [1986] Ch 638 (CA) at 647 (common intention is a "rarer class of case").

89 Nicola Peart "Towards a Concept of Family Property in New Zealand" (1996) 10 IJLPF 105 at 113–114.

972 (2015) 46 VUWLR

If it is accepted that the English jurisprudence of CICTs can be seen as split internally between

the express and extended CICTs, there is a new way of arguing against the High Court's approach to

the CICT in Harvey, which appears to draw on the English CICT approach as it exists in the

contemporary authorities.90 On this view, the inapplicability of the recent statements of English law

in Stack and other cases to the facts in Harvey is not merely due to the lack of contributions of the

claimant, as the Court of Appeal stated: more fundamentally, it is due to the fact that the law in New

Zealand is different, because our courts have replaced the CICT approach with the RECT. In

developing the law during the 1970s and 1980s the New Zealand Court of Appeal viewed the RECT

approach as a superior development of the English approach – not as a coexisting alternative.91 As

Professor Atkin commented at the time, the RECT approach "represents a radical departure from the

language found in the leading English cases".92 Professor Nicola Peart's chapters on "Equity in

Family Law" in one of the main New Zealand commentaries also suggests this development. She

argues that "conscious of the constraints and artificiality of the common intention approach, the

courts in … New Zealand took a different tack".93 In the 2003 edition, Professor Peart discussed

implied (extended) CICTs on the English model alongside the RECT;94 in 2009 the analysis of the

English doctrine is presented as different from the New Zealand RECT approach.95 Standard

applications of constructive trust claims cite Lankow, and sometimes Gillies, rather than Gissing,

Pettitt and Rosset.

This, it is suggested, is as it should be, given the shift from the English approach to the RECT.

The multiplication of substantively equivalent doctrinal approaches to respond to the same situation

is a recipe for confusion and inconsistency in the application of the law.96 This is not to say that

there should not be different legal doctrines that apply to different factual situations and events, or

that some overlap between doctrines in relation to the same events should not be tolerated. Instead,

the claim is that if different jurisdictions have developed slightly different approaches to the same

factual events, then it does not make sense for courts to apply each of these approaches as an

alternative. It would be better to say that the situation of express common intentions should be

90 For example it has been stated that the CICT approach "has been abandoned in comparable jurisdictions":

Graeme Moffat, Gerry Bean, and Rebecca Probert Trusts Law (5th ed, Cambridge University Press,

Cambridge, 2009) at 607.

91 See the references above at n 20. See also Alastair Hudson and Geraint Thomas The Law of Trusts (2nd ed,

Oxford University Press, Oxford, 2010) at 814.

92 Bill Atkin "De Factos Engaging Our Attention" (1988) NZLJ 12 at 13.

93 Peart, above n 31, at 1199.

94 At 1202–1205.

95 At 1198–2108.

96 See the critique provided in Mee, above n 17, at 292–293. More generally, see Peter Birks "Equity in the

Modern Law: An Exercise in Taxonomy" (1996) 26 UWAL Rev 1 at 7.


understood as decided within the RECT framework where the reasonable expectation is grounded

on an expressed intention for beneficial sharing.

Removing the extended CICT approach from New Zealand law is beneficial due to the

perceived controversy and uncertainty surrounding the English doctrine.97 Even after Stack, the

nature of the CICT is uncertain.98 Professor Hudson argues:99

The result of this failure to introduce clarity is that the whole sorry circus of courts at first instance

taking entirely different approaches to the law will begin again … so that ten years from now we shall

be trying to identify patterns in another spaghetti of case law.

Further, the wildly divergent results as between the English Court of Appeal and Supreme

Court's decisions in Jones exemplify the uncertainty; the differences among the judges within the

Supreme Court in that case is further evidence.100

The argument above is that the resort to English doctrine is no longer necessary or legally sound

in New Zealand law; it must be supported with reference to the development of the doctrine in New

Zealand, to which I shall now turn.

B The Express CICT in the Formative Court of Appeal Authorities?

Osborne AJ's view that express CICTs may still exist alongside the RECT has some support in

authority and commentary. However, with the prevalence of RECT situations, most New Zealand

decisions have not often been concerned with express CICTs, and so the relationship between these

doctrines has not been well discussed. The argument presented here is that the express CICT is not

distinct and complementary to the RECT (Osborne AJ's position), but rather is merely an

uncommon kind of RECT. What evidence do we find of express intention constructive trusts in the

development of the New Zealand authority, and are they explained by reference to the English CICT

approach?

97 Mee, above n 17, at 117; Robin Lister "Equity and Trusts: The International Fallacy? Stack v. Dowden

[2007] UKHL 17" (2007) 41 Law Teacher 350 at 351; Alastair Hudson Equity and Trusts (8th ed,

Routledge, Abingdon, 2014) at 708 and 774; and William Swadling "The Common Intention Constructive

Trust in the House of Lords: An Opportunity Missed" (2007) 123 LQR 511 at 518.

98 Swadling, above n 97.

99 Hudson, above n 97, at 774. See also Swadling, above n 97; Martin Dixon "The never-ending story – co-

ownership after Stack v Dowden" [2007] Conv 456; and Simon Gardner and Katherine Davidson "The

Future of Stack v Dowden" (2011) 127 LQR 13.

100 See the varying views on how to impute an intention as between the judges in Jones v Kernott, above n 22.

For discussion see James Brown "Jones v Kernott: Which Road to Rome" (2012) 26 TLI 96; and Man Yip

"The rules applying to unmarried cohabitants' family home: Jones v Kernott" [2012] Conv 159.

974 (2015) 46 VUWLR

The case which is often seen as the starting point for the New Zealand jurisprudence in this area

is Hayward v Giordani,101 in which Cooke P notes that the English cases of Pettitt and Gissing have

led to an orthodoxy under which substantial contributions to property, combined with an inferred

common intention to share beneficial interests, can lead a court to recognise a trust.102 Although he

did not see fit to choose between identifying it as either "resulting, implied, or constructive", any of

these being outside of the statutory formality.103 Cooke P felt able to "draw the inference that there

was a sufficient common intention of equal sharing to give rise to a trust".104 This was separate

from constructive trusts in which "actual intention could not be inferred" but given the

circumstances reasonable people would have agreed on beneficial sharing if they had thought about

it.105 Thus, a distinction was made between trusts arising from an express or inferred actual

common intention and those that the Court will find in circumstances where despite a lack of actual

common intention, "flowing from the joint efforts of the parties and reasonable expectations".106 At

this stage the English express or extended CICT approach continued to dominate, as the RECT

approach had not yet arisen.

Discussion of expressed intentions of the parties was also necessary in Gillies due to the

defendant's clear statements that the claimant would have no right in the defendant's property.

Cooke P, after considering recent Commonwealth and Court of Appeal jurisprudence concerning the

courts' ability in de facto relationship disputes to give effect to rights to property that do not mirror

the legal title, argued that the various doctrinal bases identified took account of the same factors,

"largely saying much the same thing in different words".107 The President argued that actual

common intention was not needed,108 although he also agreed with counsel that a constructive trust

may arise where there is express agreement concerning shared ownership.109 Whatever the doctrine,

"reasonable expectations in the light of the conduct of the parties are at the heart of the matter", and

101 Hayward v Giordani, above n 15. There is also a detailed discussion of the English jurisprudence in

Avondale Printers & Stationers Ltd v Haggie [1979] 2 NZLR 124 (SC).

102 At 143–144.

103 At 144.

104 At 145.

105 At 145–146.

106 At 148.

107 Gillies v Keogh, above n 20, at 330. Compare with Fisher J's substitution of similar concepts in describing

the reasonable expectations approach in Cossey v Bach, above n 43, at 626, and Gault J's approach in

Lankow v Rose, above n 11, at [289]. A trenchant critique of this logic is provided by Mee, above n 17, at ch

9.

108 At 332.

109 At 333.


the relevant conduct identified was the sacrifices of the claimant and contributions of the claimant

that the defendant takes the benefit of.110 Importantly, is seems that contributions or sacrifice are

key factors even where there is an expressed intention of shared beneficial ownership.111 The

language of reasonable expectations had begun to replace the extended CICT and other doctrinal

bases for intervention,112 but Cooke P does not base this on any particular doctrinal principle. In

contrast, Richardson J founded his analysis on a "principled basis" with reference to estoppel

principles.113

It is in the current landmark,114 Lankow, that the RECT approach replaces the CICT in the sense

that neither express common intention nor the English jurisprudence play an important role. The key

features of the new test were the claimant's contribution, alongside the reasonable expectation of an

interest in the property.115 Tipping J's formula in Lankow has become the canonical statement of the

requirements of RECTs. He and Hardie-Boys J made unconscionability the foundation for the

claim,116 and fleshed out the RECT test without basing it exclusively within either estoppel or

unjust enrichment concepts.117 What is obvious is that the Court of Appeal takes itself to be

rejecting the English CICT approach to this kind of constructive trust. Tipping J, in the decision

supported by Gault and McKay JJ, rejected the English focus on express intention or understanding,

an approach which he characterised as "essentially contractual or quasi-contractual [and]

unnecessarily artificial".118 The Court also sought to state the law as clearly as possible; as Hardie-

Boys J stated in Lankow, "it is important that whatever the legal rubric there should be clear criteria

for the imposition of constructive trusts in the area of de facto relationships".119 While concurring

with Tipping J's decision, Gault J preferred the Canadian unjust enrichment approach (though he

stated that a claim could have equally been made through estoppel, inferred common intention or

unconscionability).120

110 At 331.

111 At 333–334.

112 See this use of the RECT in Phillips v Phillips, above n 20.

113 Gillies v Keogh, above n 20, at 344 and 347.

114 See for example Horsfield v Giltrap (2001) 20 FRNZ 404 (CA) at [20], citing Tipping J's decision.

115 Lankow v Rose, above n 11, at 294 per Tipping J and at 282 per Hardie-Boys J.

116 At 294 per Tipping J and at 281 per Hardie-Boys J.

117 At 293–294 per Tipping J and at 282 per Hardie Boys J.

118 At 293.

119 At 282.

120 At 289 per Gault J.

976 (2015) 46 VUWLR

In the landmark authorities in this area, the English CICT approach is replaced by the RECT

approach. It is, however, clear that the RECT would be satisfied in circumstances where an express

common intention existed alongside the other requirements.121 It would of course be odd to use the

terminology of "reasonable expectations" where there were actual expressed intentions: reasonable

expectations are used to ascertain the existence and content of equitable interests in the absence of

expressed intentions. Whatever we call the situation, the requirement of contributions seems

unquestionable: it features in the statements of law in each of the cases discussed above. In Harvey

the claimant would have to argue that the extended CICT remains outside the RECT analysis, and –

despite the importance of detriment/contribution in the English and New Zealand authority – that

contributions to the property are not required. Can this interpretation be founded in New Zealand

case law, despite the above analysis of the Court of Appeal's development of the RECT?

C The Survival of the Express CICT?

There are still indications in the case law that the RECT has not become the exclusive kind of

constructive trust claim relating to informal property rights in New Zealand. In a line of cases on

which Osborne AJ drew on in deciding Harvey (HC), it has been said that when express common

intentions with respect to beneficial ownership have been set down, it is not necessary to determine

what the reasonable expectations of the parties were.122 But these cases have usually been decided

on other grounds – meaning that a brief mention of the express CICT has not been accompanied by

any discussion of a requirement of contribution or detriment – and a detailed discussion and

clarification in the higher courts has not occurred.

It is also arguable that expressed intentions of beneficial ownership should be recognised only

through express trusts or through the dominant RECT, the New Zealand law having moved on from

the English CICT approach. The case that later courts have focused on when identifying a CICT that

sits alongside the RECT is Cossey, decided in 1992 between Gillies and Lankow. There Fisher J –

who had written a commentary on family property123 – sought to "set out the core principles of

Gillies v Keogh" as they should apply to de facto property disputes in general.124 The express

intentions of the parties as to beneficial interests were identified as determinative: if the parties had

by their words or conduct "expressed their own proprietary formula" this was "the end of the

matter".125 Although these comments were obiter,126 this reasoning seems most influential on

121 Arguably this describes the position of Cooke P in Gormack v Scott [1995] NZFLR 289 (CA) at 293–294.

122 Gormack v Scott, above n 121; Horsfield v Giltrap [2000] NZFLR 1047 (HC); Boys v Calderwood HC

Auckland CIV-2004-404-290, 14 June 2005 at [96]–[98]; SM v MH, above n 53, at [44]; and Coffey v

Coffey [2012] NZHC 1765 at [110]–[111].

123 RL Fisher Fisher on Matrimonial Property (2nd ed, Butterworths, Wellington, 1984).

124 Cossey v Bach, above n 43, at 627 per Fisher J.

125 At 627.


Osborne AJ's view that detriment may not be required: Fisher J places doubt on statements of Cooke

P in Gillies that contribution or detriment is required for a claim to be made out.127

However Fisher J's argument is not entirely clear on the distinction between constructive trusts

and express trusts – as was observed in SM v MH.128 He stated that where a couple "clearly evinced

a common intention that the property be beneficially owned by them in equal shares, this overtook

any alternative arguments founded upon constructive trusts or contributions".129 The Judge further

explains that a common intention as to beneficial ownership will have to be agreed on where both

partners have a disposing interest in the property, but that it is also "always open to the owner of the

property to unilaterally settle an interest upon the other".130 This suggests a distinction between

"express common intention" situations and the reasonable expectation approach, but without

explaining whether the former is an express or constructive trust. In summarising the position,

Fisher J identifies three distinct categories: (a) unequivocal expressed intentions that are common or

held by the person with disposing power over the property; (b) unilateral expressed intentions by the

person with disposing power over the property; and (c) reasonable expectation constructive

trusts.131 With respect, the reasoning behind these categories is not entirely clear, but there is at least

some support for the continued existence of express CICTs.

Beyond Cossey, the judicial analysis of the express CICT sitting alongside the RECT is sparse

and usually obiter comment in lower courts – in other words, it is of little support for the English

express CICT remaining in New Zealand. This can be seen in the decisions cited by Osborne AJ:

In X v Y, an express trust was found on the facts, with the idea of express common

intentions falling under this head.132 An alternative constructive trust claim was set out

with reference only to the RECT approach as found in New Zealand authorities.133

The existence of a "common intention trust" was accepted in the unreported case Boys v

Calderwood.134 The requirements of such a trust were set out simply by reference to Fisher

126 As noted in Harvey (HC), above n 2, at [24].

127 Cossey v Bach, above n 43, at 627–628.

128 SM v MH, above n 53, at [44].

129 Cossey v Bach, above n 43, at 627.

130 At 628.

131 At 631–632.

132 X v Y HC Auckland M100/95, 28 November 1995 at 32–39 per Penlington J.

133 At 39–43.

134 Boys v Calderwood, above n 122, at [96]–[98].

978 (2015) 46 VUWLR

J's decision in Cossey,135 and the discussion does not clearly refer to the English CICT

approach as opposed to express trusts.

As has been noted, in SM v MH it is not clear whether the trust identified as arising due to

"unequivocal expressed intention" is seen as an express trust or a constructive trust.136 The

English authority is not discussed. The formality requirement for trusts of land, which

seems to apply to the right of occupation of a house that was the subject matter of the

trust.137 The ambiguity and lack of analysis gives this decision little weight in showing that

express CICTs remain in New Zealand.

In the High Court's decision in LG v MER,138 Wild J identified the "common intention

constructive trust" as based in the common intentions – express or inferred from conduct –

as the beneficial ownership of property.139 The constructive trust claim involved was

characterised as that discussed by Mahon J in Avondale Printers & Stationers v Haggie;140

however, the kind of claim discussed in that case generally arises where property is

transferred on the basis that such beneficial ownership would exist, and it would be

equitable fraud if this interest was not recognised.141 Although Wild J also cited English

text and authority for the CICT, the "receipt after undertaking" constructive trust is

different from the English CICT. Therefore this decision also does not provide sound

support the existence of the express CICT.

In Clark v Clark, Asher J seems to say that the express CICT could be recognised in New

Zealand:142

… there is a type of constructive trust which does turn on common intention. The relevant intention is

that which each party manifests by their words and conduct, notwithstanding that for one reason or

another an express trust is not formed. … While it is possible to infer a constructive trust in these

circumstances from conduct, the express words of the parties, if proven, will be highly relevant.

The cases cited for this proposition were English – they were the "trusts of family homes"

decisions, although Cooke P's reasoning in Gormack v Scott is consistent with this point.143 It may

135 At [97].

136 SM v MH, above n 53, at [44].

137 At [55].

138 LG v MER [2010] NZFLR 1001 (HC).

139 At [91].

140 Avondale Printers & Stationers Ltd v Haggie, above n 101.

141 LG v MER, above n 138, at [91]. See Avondale Printers & Stationers Ltd v Haggie, above n 101, at 163.

142 Clark v Clark [2012] NZHC 3159, [2013] NZFLR 534 at [54].


be that the Judge thought this a stand-alone case of constructive trust, arising without any

contribution. He observes that an express trust that fails due to lack of conformity with formalities

can be upheld as an express trust – again without any reference to contributions or detriment.144

Asher J seems to treat RECTs arising in de facto relationships as a separate kind of trust, and there

he states that a contribution to the property must be shown.145 It is the latter claim that succeeds in

the case,146 and the prior discussions of constructive trusts should be regarded as obiter (that are not

fully analysed).

Some post-Lankow Court of Appeal decisions that mention express common intention have also

been decided on the RECT approach, and without clear discussion of the basis and relationship of

these approaches.147 In light of the lack of clear higher court support for the continuing existence of

a separate express CICT founded in the current English law, the Court of Appeal in Harvey (CA)

might have been bolder: the express CICT does not exist in New Zealand law, and situations where

there is an express intention to share property beneficially should be argued as either an express

trust or RECT. The New Zealand courts moved away from the English approach to the RECT, and

there is no reason to go back to the old doctrine where there is an express common intention, for this

situation falls within the "indigenous" doctrine. The decisions that recognise the importance of

expressed intentions work within the logic of the new doctrine.

D The Contribution/Detriment Requirement

In addition to the Court of Appeal doubting that a distinction between the CICT and the RECT

should be drawn, its main dispute with the High Court decision was on whether contributions or

other detrimental reliance was a requirement for the imposition of a constructive trust where there is

a common intention or reasonable expectations that one has an interest in another's property. The

reason that prevented Osborne AJ from granting summary judgment to Reverend Harvey was the

doubt that he found in the New Zealand law (of CICTs) concerning a requirement of contribution to

the property or detrimental reliance: neither of these was asserted in a form that would have

grounded a claim in terms of a RECT or proprietary estoppel. But Osborne AJ observed that in the

case of the express CICT, such requirements were not unequivocally found in the cases.

Because of what he sees as the lack of discussion of the requirements of the CICT in New

Zealand authority or commentary, particularly concerning whether there is a requirement of

143 Gormack v Scott, above n 121, at 293: "Where there has been an express common intention applicable to the

circumstances that have arisen, it is unnecessary to fall back on reasonable expectations."

144 Clark v Clark, above n 142, at [55], citing Pennington v Waine, above n 68.

145 At [56].

146 At [57] and following.

147 Gormack v Scott, above n 121; and Horsfield v Giltrap, above n 122.

980 (2015) 46 VUWLR

contribution or detriment, Osborne AJ looks to the English authorities.148 There the Associate Judge

does find requirement of detriment, which he sees as doctrinally sound, because:149

… in the absence of such, the unconscionability or fraud on the statute which justifies the Court 's

upholding of constructive trusts will be absent. If something in the nature of detriment is not required, it

is arguable that the Court would be unjustifiably enforcing an express trust which was not documented

in writing.

Here is a clear recognition that the orthodox view of the English CICT approach requires

contribution or detriment, which has been supported in most of the authority150 and commentary.151

While in the most recent developments of the law of extended CICTs the requirement of detriment

is not explicitly stated,152 it is arguable that Stack neither explicitly overruled the prior law on this

point nor created a test that did not require detriment.153 The detriment requirement is supported by

recent judicial pronouncements, including the Court of Appeal decision in Smith v Bottomley154 and


149 At [49].

150 See Gissing v Gissing, above n 86, at 905 per Lord Diplock; Lloyd's Bank v Rosset, above n 87, at 132–133

per Lord Bridge; Grant v Edwards, above n 88, at 654. Midland Bank v Dobson [1986] 1 FLR 171 (CA);

and Yaxley v Gotts [2000] Ch 162 (CA) at 176.

151 For example see John Mee "Joint Ownership, Subjective Intention and the Common Intention Constructive

Trust" [2007] Conv 14; Nick Hopkins "The Pallant v Morgan Equity" [2002] Conv 35; Brian Sloan

"Keeping Up With the Jones Case: Establishing Constructive Trusts in 'Sole Legal Owner' Scenarios"

(2015) 35 LS 226 at 228–229; John Randall "Proprietary estoppel and the common intention constructive

trust – Strange bedfellows or a match in the making?" (2010) 4 J Eq 1 at 37–39; Matthews, above n 88, at

47–48; John Mowbray and others "Trusts Arising on the Acquisition of Property" in Lewin on Trusts (18th

ed, Sweet & Maxwell, London, 2008) 289 at 321 and 330; Halsbury's Laws of England (online ed, 2013) 98

"Trusts and Powers" at [117]; Kevin Gray and Susan Francis Gray Elements of Land Law (5th ed, Oxford

University Press, Oxford, 2009) at 869–870 and 882–888; Robert Pearce, John Stephens and Warren Barr

The Law of Trusts and Equitable Obligations (5th ed, Oxford University Press, Oxford, 2010) at 313–314,

337–338 and 371–374; Webb and Akkouh, above n 24, at 210–211; and Hudson and Thomas, above n 91,

at 816 and 1518–1519.

152 Virgo, above n 24, at 325 and 329; Gardner, above n 24, at 434–435; and Etherton, above n 61 at 109–110.

Compare the Court of Appeal's statement in Harvey (CA), above n 2, at n 29 about the requirement of

contributions in Jones v Kernott, above n 22; and Stack v Dowden, above n 21.

153 Hudson, above n 97, at 766; David Fox "Trusts Arising to Enforce an Informally Expressed Intention" in

John McGhee (ed) Snell's Equity (32nd ed, Sweet & Maxwell, London, 2010) 717 at 747; and Sloan, above

n 151, at 228–229. See also Neuberger LJ's comments in his dissenting judgment in Stack v Downden,

above n 21, at [124] regarding the common intention: "… such an intention may be express (although not

complying with the requisite formalities) or inferred, and must normally be supported by some detriment, to

justify intervention by equity".

154 Smith v Bottomley [2013] EWCA Civ 953, [2014] 1 FLR 626 at [31]: detrimental reliance is "a critical

element of [the] claim to a beneficial interest in the properties in question … by way of constructive trust".


the argument of Lewisham LJ in the recent English Court of Appeal decision in Curran v

Collins:155

The need for detrimental reliance on the part of the claimant is an essential feature of this kind of case.

… Although [the claimant's lawyer's] skeleton argument suggested that the need for detrimental reliance

had been abolished by Stack v Dowden and Jones v Kernott, she rightly abandoned that argument in the

course of her oral address. The judge's finding on that point… was that [the claimant] did not in any way

act to her detriment in reliance on the specious excuse "or at all". That in itself is fatal to [the claimant's]

case.

However, as the case was an application for summary judgment, Osborne AJ observed that

because the New Zealand law of CICTs is not settled, and in light of the reasoning in a number of

High Court decisions, detriment might not be required in New Zealand, and thus Beveridge might

have a defence.156

In contrast, the Court of Appeal found that New Zealand law mirrored the English; without

contribution or detriment there would be nothing unconscionable in not giving effect to expressed

common intentions to hold land on trust.157 Even just looking at the New Zealand authority,

contribution or other detriment was almost always central, as seen in the key Court of Appeal cases:

Hayward,158 Pasi v Kamana,159 Oliver v Bradley,160 Gillies161 and Lankow.162 Since Lankow,

Tipping J or Hardie-Boys J's statements of the law have effectively become the test for the RECT,

and subsequent cases have emphasised the requirement of a contribution.163 Thus, Osborne AJ's

view that the requirement of detriment is not settled in New Zealand depends on treating the express

155 Curran v Collins [2015] EWCA Civ 404, [2015] Fam Law 780 at [77]–[78]. See also the way in which

Hong Kong decisions make detrimental reliance a requirement of CICTs, effectively applying the English

law: Chen Tek Yee v Chan Moon Shing [2015] HKCFI 723; Kwan So Ling v Woo Kee Yiu Harry [2015]

HKCFI 698; and Mo Ying v Brillex Development Ltd [2015] HKCA 156.


157 Harvey (CA), above n 2, at [46]

158 Hayward v Giordani, above n 15, at 143–144.

159 Pasi v Kamana, above n 20, at 604–605 per Cooke P, at 608 per McMullin J and at 609 per Casey J.

160 Oliver v Bradley [1987] 1 NZLR 586 at 589–590 per Cooke P. The importance of contributions is implicit

at 593–594 per Henry J.

161 Gillies v Keogh, above n 20, at 331 and 333–334 per Cooke P, at 343–347 per Richardson J and at 350–351

per Bisson J.

162 Lankow v Rose, above n 11, at 282 per Hardie-Boys J, at 289–290 per McKay J and at 294–295 per Tipping

J. See also Partridge v Moller HC Invercargill CP 82-87, March 9 1990 at 12.

163 For example, Smythe v Wadland HC Auckland CIV-2005-404-3459, 16 July 2007 at [82]–[85] per Frater J.

982 (2015) 46 VUWLR

CICT as separate from the RECT approach; otherwise, it is clear that contribution or other detriment

is essential to the claim.

Commentary on early New Zealand decisions clearly viewed detriment as a requirement before

equity would intervene.164 Professor Atkin's expansive discussion of the early development of

English and New Zealand law noted that "proof of common intention will not itself be enough to

complete the claim for an equitable interest in the property. It will also be necessary to prove that

the plaintiff acted to his or her detriment."165 Although Professor Peart's recent commentary in

Equity and Trusts in New Zealand does not mention any requirement of contribution or determine

when the courts are giving effect to expressed intentions,166 in her earlier discussions of the law the

requirement of contributions is clear,167 as is evident in the passage that Osborne AJ cites.168 The

authors of Fisher on Matrimonial and Relationship Property also seem to identify contributions as a

necessary aspect of giving effect to an informal express trust of land, commenting in the context of

noting the statutory formality:169

If, on the strength of an oral declaration of trust by [one party, the other] contributes to the acquisition or

improvement of property, subsequent acceptance of oral evidence of the trust would seem necessary to

prevent fraud on the part of the [first party].

What, then, of the cases that suggest that contribution is not required? In Harvey (HC) Osborne

AJ identifies Cossey as the main authority.170 Although Fisher J noted the emphasis on

contributions in the New Zealand development of the RECT,171 he also identified a common

intention trust that he said did not rely on contributions,172 and later contrasts the express intention

situation from constructive trusts, which "require that the claimant has made sacrifices and/or

contributions in reliance upon the reasonable expectation of an interest in the property".173 Where

Fisher J referred to Hayward's use of common intentions, he stated that "this overtook any

164 Atkin, above n 92, at 14; JK Maxton "Equity" [1989] NZ Recent L Rev 130 at 134; and Peart, above n 31, at

1204.

165 Atkin, above n 7, at 93.

166 Peart, above n 31, at 1200–1201.

167 Nicola Peart "A Comparative View of Property Rights in De Facto Relationships: Are We All Driving in

the Same Direction?" (1989) 7 Otago LR 100 at 103; and Peart, above n 89, at 115.


169 Fisher, above n 123, at [4.28].


171 Cossey v Bach, above n 43, at 626.

172 At 627–628.

173 At 628.


alternative arguments founded upon constructive trusts or contributions",174 suggesting that

contributions are irrelevant to an express trust claim. This all suggests an express common intention

trust sitting alongside the RECT. However, it is not completely clear whether what Fisher J was

referring to was a CICT: as noted in Harvey (HC), a later judge interpreted Fisher J as referring to

express trusts.175 Furthermore, in Hayward, Cooke P's statement of the law does require

contributions, which did exist on the facts.176 Thus Cossey is not a strong authority to show that an

express CICT does not require contribution or reliance in New Zealand.

E The Doctrinal Basis

Ultimately the question of whether contribution or other detrimental reliance is required by New

Zealand constructive trust doctrine in this area depends on how one reads the development of the

law as expressed in authority and interpreted in commentary. It was argued above that the English

CICT approach was rejected in New Zealand, so that express common intentions must instead be

incorporated into our Court of Appeal's new RECT approach. In any case, the development of the

reasonable expectation test was based on the fundamental equivalence of proprietary estoppel,

CICTs and unjust enrichment – each of which responded to contributions or other reliance. With

respect, the view that a distinctive New Zealand CICT that does not require contribution or other

reliance may exist has neither much support in principle, nor in the authority and commentaries:

whether the RECT replaces other approaches or not, all of the possible other claims including the

CICT require contribution or reliance. The Court of Appeal in Harvey (CA) takes a similar position,

albeit without providing an in-depth analysis of the various approaches or the relevant case law and

commentary.

Why there is a requirement of contributions or detrimental reliance at all is a crucial point,

because it requires an analysis of the doctrinal basis of the law in this area – which has been said to

"lack any independent theoretical basis".177 The cause of action that grounds the RECT has always

been unclear,178 and the Court of Appeal's development of the doctrine denied the need to identify

any one doctrinal foundation.179

174 At 627.

175 SM v MH, above n 53, at [44].

176 Hayward v Giordani, above n 15, at 144–145.

177 Mee, above n 17, at 293. See also Simon Gardner's analysis of the doctrinal basis for family property

decisions in Simon Gardner "Rethinking Family Property" (1993) 109 LQR 263; and Gardner, above n 24.

178 Rickett "Causes of Action and Remedies: Getting it Clear!" (1994) NZLJ 207; and Peart, above n 31, at

1205.

179 See discussion above at Part IV:B: The Express CICT in the Formative Court of Appeal Authorities?; and

Mee, above n 17, at ch 9.

984 (2015) 46 VUWLR

1 Giving effect to the informal express trust?

One option that cannot be accepted is that a constructive trust arises in response merely to a

common intention that the beneficial rights in the property be held on trust – a situation that might

create an express trust if it were not for the signed writing formality.180 As Penner puts it: "Why, if a

common intention to share property is proved or inferred from all the evidence, does this not operate

as an effective declaration of trust, albeit an informal one?"181 Whether the formality rule should be

avoided is questionable; it has reasons behind it.182 As the Court of Appeal observes,183 to bypass

the formality simply by saying that an informal declaration of trust is effective as a constructive

trust if the beneficiary also intends to benefit from it will allow many other claimants to make this

argument. This would virtually destroy the formality rule.184

Osborne AJ recognised in Harvey (HC) that there was a tension between expressed intention

trusts of land and the formality.185 However, he said the express CICT was different from the

express trust: "The concept of a trust obligation created by the unilateral intention of the legal owner

… is by its nature fundamentally different to the common intention constructive trust invoked by Mr

Beveridge in this case."186 However the fundamental difference is not explained further. Explaining

the relevant intention later, the Associate Judge cites an Australian text that observes: "Proof of a

real intention on the part of the title-holder that the party seeking relief was to have a beneficial

interest is needed to found the Court's jurisdiction to prevent unconscionable reliance on legal

rights."187 This could be found in written or oral statements or inferred from the parties' actions in

the circumstances.188 But again this shows that the "settlor" has requisite intention to hold their

property on trust for the claimant, which is all that is required to satisfy the "certainty of intention"

requirement for an express trust. The "common" aspect of the express CICT might provide some

distinction from the express trust, but it is not clear how except by reference perhaps to detrimental

180 Fisher, above n 123, at [4.8]. For observations about the role of the CICT in avoiding the formality

requirements, see Gino Dal Pont "Equity's Chameleon – Unmasking the Constructive Trust" (1997) 16 Aust

Bar Rev 46 at 65–70. James Penner The Law of Trusts (9th ed, Oxford University Press, Oxford, 2014) at

113 and 120. The relevant English provision is s 53(1)(b) of the Law of Property Act 1925 (UK).

181 Penner, above n 180, at 113. See also Moffat, Bean and Probert, above n 90, at 607.

182 See Ben McFarlane The Structure of Property Law (Hart Publishing, Oxford, 2007) at 99–111; and Patricia

Critchley "Taking Formalities Seriously" in Susan Bright and John Dewar (eds) Land Law: Themes and

Perspectives (Oxford University Press, Oxford, 1998) 507.


184 Gardner, above n 24, at 435.

185 At [13].

186 At [30].

187 At [38].

188 At [39].


reliance; the simple fact that the intended beneficiary knows of the failed trust does not give rise to

unconscionability, and to hold otherwise would be to subvert the formality.

2 Fraud on the statute

The same reasoning can be applied to suggestions that the express CICT should be seen as

drawing on the venerable doctrine that formality rules should not themselves be used to perpetrate a

fraud.189 The root of the modern doctrine is Rochefoucauld v Boustead.190 This line of cases holds

that statutory formality rules should not apply where it was clear that a beneficial interest was

intended by the parties, and the defendant's not recognising that interest can be characterised as a

fraud on the statute.191 This idea has been identified by some commentators as the possible

foundation of the express CICT and the RECT.192

However, this doctrine is quite different to the usual CICT/RECT situation, for it is most

commonly used in circumstances where land or other property is acquired by the defendant on the

understanding that a beneficial interest in the property be recognised in favour of the donor or

another person.193 The situations covered by this doctrine are not analogous to one in which a

person owns property themselves and either self-declares a trust or acts in a way to give another a

189 Bannister v Bannister [1948] 2 All ER 133 (CA); Hodgson v Marks [1971] Ch 892 (CA); and Penner, above

n 180, at 120. See also Allen v Snyder [1977] 2 NSWLR 685 (NSW CA).

190 Rochefoucauld v Boustead [1897] 1 Ch 196 (CA).

191 McCormick v Grogan (1869) LR 4 HL 82 (HL); Bannister v Bannister, above n 189; Binnion v Evans

[1972] 1 Ch 379; Peychers v Peychers [1955] NZLR 564 (SC); Avondale Printers & Stationers v Haggie,

above n 101; Crampton-Smith v Crampton-Smith [2011] NZCA 308, [2012] 1 NZLR 5 at [57]. See the

various recent academic analyses of these trusts: Simon Gardner "Reliance-Based Constructive Trusts" in

Charles Mitchell (ed) Constructive and Resulting Trusts (Hart, Oxford, 2009) 63; Matthews, above n 88, at

21 and following; Ying Khai Liew "The Secondary-Rights Approach to the 'Common Intention

Constructive Trust'" [2015] Conv 210; and Ben McFarlane "Constructive Trusts Arising on a Receipt of

Property Sub Conditione" (2004) 120 LQR 667.

192 This view is found LG v MER, above n 138, at [91]–[92], which is cited by Osborne AJ in Harvey (HC),

above n 2, at [29]. See Peart, above n 167, at 103, 110–111, 128, 133–134; and Nicola Peart and Graeme

Austin "Equity in Family Law" in Andrew Butler (ed) Equity and Trusts in New Zealand (Brookers,

Wellington, 2003) 1179 at 1206; and Peart, above n 31, at 1205. See also Darryn Jensen "Rehabilitating the

Common Intention Trust" (2004) 23 UQLJ 54 at 64-65; and MP Thompson "Constructive Trusts and Non-

binding Agreements" [2001] Conv 265.

193 Avondale Printers & Stationers v Haggie, above n 101, at 162–163 per Mahon J; Bahr v Nicolay (No 2)

(1988) 164 CLR 604 at [15]; Ispt Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC

697 at [329]–[336]; and Lincu v Krnjulac [2014] NSWSC 532 at [53]. See the various similar general

discussion of the nature of trusts in the Rochefoucauld-type situations in Nick Hopkins "Conscience,

Discretion, and the Creation of Property Rights" (2006) 26 LS 475; Hopkins, above n 151; Gardner, above n

191, at 68–70; McFarlane, above n 191; Virgo, above n 24, at 120–123; and Fox, above n 153, at 739–740.

Mee, above n 17, at 158 makes a similar argument against the use of Rochefoucauld reasoning to found the

English CICT.

986 (2015) 46 VUWLR

reasonable expectation of an interest in the property, and Rochefoucauld and similar cases are not

prominent in the relevant English or New Zealand authority or commentary relating to constructive

trusts in relationship property contexts. Furthermore, some commentators have identified

detrimental reliance as the justification for the doctrine in this area;194 Professor Simon Gardner

provides a theory of these cases of constructive trust as arising to oblige the defendant "to make

good the loss that X [the claimant] would otherwise suffer when, in reasonable reliance on Y [the

defendant's] undertaking to allow a right in some property which is or comes to be in the Y's hands,

X foregoes an opportunity to bring this right about in some other way".195 This explanation of the

"fraud on the statute" trusts does not apply to most CICT/RECT situations. However, it may be

argued that these doctrines share the same justificatory foundations,196 as will be briefly suggested

below.

3 Emphasising the contribution or detrimental Reliance basis: estoppel or unjust

enrichment

The basis for the claim in CICTs and RECTs is unconscionable behaviour by the owner of

property in relation to someone else who has, in the course of the parties' dealings or relationship,

come to expect an interest in the defendant's property. Although the situations of transfer subject to

an undertaking or condition (discussed in the section above) are different from most of those falling

under the CICT/RECT doctrines, arguably they are linked by a justificatory basis in preventing

detrimental reliance, including contributions to another's property. For while the doctrinal basis for

CICT/RECTs is controversial and often not fully explained, it is commonly identified as either a

form of, or analogous to, estoppel or unjust enrichment.

Despite the continuing developments and controversy in the English law, a common doctrinal

explanation of CICTs remains that the reliance on an expectation of an interest is what makes it

unconscionable for the defendant to cause detriment by not giving effect to the common

intention.197 Where there is an express agreement or undertaking regarding the family home, the

detriment requirement is what saves the arrangement from merely being an unenforceable express

trust.198 In England, the idea of detrimental reliance has been dominant from the beginning of the

194 Simon Gardner An Introduction to the Law of Trusts (3rd ed, Clarendon, Oxford, 2011) at 97 and 328–334;

McFarlane, above n 191; and Ying Khai Liew "Rochefoucauld v Boustead (1897)" in Charles Mitchell and

Paul Mitchell (eds) Landmark Cases in Equity (Hart Publishing, Oxford, 2002) 423.

195 Gardner, above n 191, at 79.

196 Jensen, above n 192, at 64–65.

197 Matthews, above n 88, at 46–50. See also Liew, above n 191.

198 Gray and Gray, above n 151, at 890; Fox, above n 153, at 749; Gardner, above n 194, at 339; Jill E Martin

Hanbury and Martin: Modern Equity (19th ed, Sweet & Maxwell, London, 2012) at 298; Denis SK Ong

Trusts Law in Australia (4th ed, Federation Press, Annandale, 2012) at 594–595; David Hayton

"Constructive trusts of homes – a bold approach" (1993) 109 LQR 485; and Etherton, above n 61, at 125.


CICT,199 with English authority and commentary commonly being premised on the claimant

showing detrimental reliance on the common intention as to beneficial ownership of the property.200

Similarly, the New Zealand Court of Appeal's approach can be seen as founded on detrimental

reliance in the form of contributions to the property; alternatively one might emphasise the New

Zealand doctrine's reference to contributions and reasonable expectations, which draw on the

Canadian jurisprudence of unjust enrichment.201 While the choice of doctrinal foundation will make

a difference to outcomes in some cases due to the nature of that doctrine, it seems clear that the

explanation of unconscionability in the CICT/RECT depends on detrimental reliance. Something

more is needed than mere common intentions, expressed or not. At least this is the view arrived at

here after the above analysis of the development of the New Zealand doctrine in light of its roots in

English authority and its possible doctrinal foundations. Although this author respectfully disagrees

with Osborne AJ's similar analysis in Harvey (HC), I join him in saying that the New Zealand

authority and commentary does not speak unequivocally on the nature of constructive trust claims in

this area, including whether there is any requirement for contribution or other detrimental reliance.

V CONCLUSION

The law relating to equity's recognition of informal beneficial rights to property has always

raised difficult conceptual questions; clearly analysing them and charting the preferred path forward

is the task of courts and commentators, not to mention lawyers advising their clients. The

development of New Zealand law relating to the availability of constructive trusts in relationship

property disputes has, it is respectfully submitted, suffered from its refusal to clearly choose and

justify a doctrinal path to achieving practical justice between parties. This resulted in the High Court

decision in Harvey (HC) that found the law uncharted and equivocal, followed by the Court of

Appeal reversal that claimed that the law was settled, but without discussing in any substantial way

the doctrinal points made below. We now know that such constructive trust claims require

contributions or other detrimental reliance, but how this is reconciled or opposed to the authorities

cited by Osborne AJ is not discussed by the Court of Appeal.

199 Gissing v Gissing, above n 86, at 905 per Lord Diplock; Lloyd's Bank v Rosset, above n 87, at 132–133 per

Lord Bridge; Grant v Edwards, above n 88; and Austin v Keele (1987) 61 ALJR 605 (PC). See Matthews,

above n 197, at 46–50.

200 Mee, above n 17, at 141; and McFarlan, above n 198, at 614.

201 See Petkus v Becker [1980] SCR 834; Sorochan v. Sorochan [1986] 2 SCR 38; and Peter v Beblow [1993] 1

SCR 980. For discussion see Mitchell McInnes "A Return to First Principles in Unjust Enrichment: Kerr v

Baranow" (2011) 51 Can Bus LJ 275; Mee, above n 17, at ch 7; and Chambers, above n 1. For suggestions

that unjust enrichment might replace the current English approach, see Etherton, above n 24; Gardner,

above n 177; and Gardner, above n 24. For the identification of the New Zealand approach as using unjust

enrichment concepts, see Mowbray and others, above n 151, at 332.

988 (2015) 46 VUWLR

Stepping back, it seems that the difficulty in this law is the result of the equivocality of its

development. In his detailed comparative and doctrinal analysis of approaches to The Property

Rights of Cohabitees, published in 1999, John Mee argued that the New Zealand Court of Appeal's

development of the law in relation to de facto property disputes was problematic in these respects

due to its refusal to identify and analyse any one doctrinal approach:202

… the New Zealand courts have taken a distinctly anti-theoretical approach, concentrating firmly on the

instrumentalist goal of achieving a broad adjustive discretion. Their willingness to view all the other

doctrines as co-extensive is … explicable on the basis that their focus is primarily on the results

generated by the doctrines. … [D]etrimental consequences have followed from the failure to channel

intellectual resources … into working out fully the parameters of any one theory. … [A] number of

points of uncertainty … might have been cleared up if a doctrinal basis had been identified and worked

through.

While this law is more the exception than the rule in resolving de facto relationship property

disputes, it would still be worthwhile for the courts to clarify it in a way that makes sense of its

historical development and shows its continuing place in a coherent New Zealand doctrinal system.

The uncertainty that is found in the High Court in Harvey (HC) concerning the detriment

requirement, and the lack of analysis of the relationship between the New Zealand approach and the

English CICT jurisprudence, could have been remedied by the Court of Appeal agreeing on one

established doctrinal basis, or providing a more detailed analysis of law. While such a systematic

analysis of the New Zealand law in this area was not necessary to resolve Harvey, some further

explanation would have been welcomed, as these issues do need to be resolved if the law is to be

clear and coherent. Although the Court of Appeal in Harvey (CA) was not sure that it is correct "that

a distinction should be drawn between constructive trusts based on 'reasonable expectations' and

'common intention' constructive trusts",203 Osborne AJ demonstrated that such a distinction is

suggested by some New Zealand authority and commentary. While there are other pressing

demands on judicial time and energy, explaining whether this is so, and why, would be an important

contribution to clarifying the doctrinal basis of the constructive trust in New Zealand.

202 Mee, above n 17, at 267 and 292.


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